Letter from the Rt Hon the Lord Irvine of Lairg, The
Lord Chancellor, to Lord Hoffmann, Chairman of Sub-Committee E

I am writing to you in response to a recent Report of the
House of Lords Select Committee on the European Communities. This
concerned the draft Convention on Jurisdiction, Recognition and
Enforcement of Judgments in Matrimonial Matters (Brussels II").
I am also writing on behalf of the Lord Advocate.

I should like to say at the outset that I have read the Report
with great interest, both for the recommendations of the Committee
itself and the impressive body of expert evidence, written and
oral, the Committee obtained from academics and practitioners.
The Report as a whole constitutes a valuable resource. It will
help the Lord Advocate and myself, and our officials, successfully
negotiate the remaining stages of this exercise and produce a
finished product which, I hope and believe, will be significantly
better than would otherwise have been the case.

I will confine myself to comment on the most important issues
raised in the Report.

The Committee considered the need for the Convention and
concluded that it would have the advantage that divorce and nullity
decrees and orders for judicial separation made by our courts
would be recognised throughout the European Union; and that this
would constitute an improvement on the present position under
the 1970 Hague Convention on the Recognition of Divorces. Seven
Member States have still not ratified this Convention and are
unlikely now ever to do so.

The Committee was much less enthusiastic about including
custody orders made on divorce within the scope of the Convention.
It was rightly pointed out that there are already international
agreements in this field, in particular the 1996 Hague Convention
on the Protection of Children, and the Committee could see no
objective justification for creating yet another. Its conclusion
was that if custody orders are to be included, the Convention
should follow as closely as possible the terms of the 1996 Hague
Convention to avoid the possibility of conflict between orders
made in relation to the same children in different proceedings;
or different children of the same family in the same proceedings.

The Lord Advocate and I entirely support the Committee's
views on these issues. I regard it as of particular importance
that all aspects of the law relating to children, including the
law on international custody jurisdiction and enforcement, should
be consistent and readily comprehensible to practitioners and
judges. We should oppose any agreement which fails to achieve
this.

The Committee was also opposed to including matters relating
to financial relief on divorce within the Convention. Again, I
agree. No one doubts the importance of this subject, but it is
an area fraught with difficulty because of the widely differing
national laws of Member States. If it is to be tackled in an international
agreement, then that should be done in an instrument that deals
comprehensively with the subject and does not do so in a piecemeal
fashion in a Convention primarily focused on divorce and custody.

I was glad to note that the Committee supported our proposal
for a limited ground of jurisdiction based on the petitioner's
domicile designed, in particular, to protect the position of a
wife returning to the United Kingdom after a brief married life
abroad.

It was also strongly in favour of introducing some degree
of flexibilty into the present inflexible lis pendens rule. It
therefore invited the Government to consider a proposal put forward
by Professor Hartley in his oral evidence. I have now considered
this issue with some care and can say that I fully support the
Committee's view on it. The proposed rule would encourage a race
to the courts" which would cut across the philosophy of mediation
and reconciliation which underpins the Family Law Act 1996. It
is with these considerations in mind that I enclose a copy of
a United Kingdom proposal which is designed to meet the concerns
of the Committee and the great majority of witnesses. It has been
approved by Professor Hartley. I would welcome any suggestions
which either you or any other member of the Committee may have
for its improvement. Disappointingly, it has not so far received
general support from other Member States, but we shall continue
to argue for some degree of judicial flexibility in the context
of competing proceedings.

One issue which did not appear in the Opinion section of
the Report, but which I believe was of concern to the Committee,
was whether the Convention should include within its scope all
children of the family", as opposed to the more limited proposal
in the current text which would only cover the children of both
spouses, so excluding step children. I am committed to ensuring
that our divorce courts remain free to deal, where necessary,
with all custody issues arising out of family breakdown on divorce.
This includes making any appropriate orders concerning step children.
Such orders should have the same effect in terms of international
recognition and enforcement as orders relating to the biological
children of the divorcing couple. I shall continue to press for
an appropriate amendment to the Convention.

It is clearly right that the relationship between this Convention
and other international agreements in this field should be unambiguous.
I agree that Article 42 of the current text needs further work
and I shall press for that to be done.

Finally, I understand the Committee's view that an ordinary
preliminary reference jurisdiction for the European Court of Justice
in relation to this Convention would be undesirable on the grounds
of expense; and, in particular, a degree of delay which would
be quite unacceptable in a family law context. With this in mind,
I was most interested to read Professor Arnull's proposal that
the Court should be given a limited ex post facto jurisdiction
to give interpretative rulings on the initiative of a Member State
or the Commission where there are conflicting judgments in national
courts. My initial reaction to this proposal is favourable, but
I shall need to consult my Ministerial colleagues on it before
reaching any concluded view.